Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 08, 2021

CASE NO(S).: PL200263

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Metro Towing Appellant: Ottawa Pool & Patio Ltd. Appellant: R.W. Tomlinson Limited Appellant: The Poole Creek Management Company Ltd.; and others Subject: Proposed Official Plan Amendment No. 240 Municipality: City of Ottawa LPAT Case No.: PL200263 LPAT File No.: PL200263 LPAT Case Name: Metro Towing v. Ottawa (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Metro Towing Appellant: Ottawa Pool & Patio Ltd. Appellant: R.W. Tomlinson Limited Appellant: The Poole Creek Management Company Ltd. Subject: By-law No. 2020-53 Municipality: City of Ottawa LPAT Case No.: PL200263 LPAT File No.: PL200264

Heard: June 23, 2021 by video hearing

APPEARANCES:

Parties	Counsel
City of Ottawa	Timothy Marc
R.W. Tomlinson Limited	Gregory Meeds
Ottawa Pool & Patio Ltd. and Metro Towing	Emma Blanchard
The Poole Creek Management Company Ltd.	Geoff Howard

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. MIDDLETON ON JUNE 23, 2021 AND ORDER OF THE TRIBUNAL

1This was the third Case Management Conference (“CMC”) in this matter and was held by video hearing (“VH”) by the Ontario Land Tribunal (“Tribunal” or “OLT”) on Wednesday, June 23 2021. The previous CMC’s were held on October 27, 2020 and February 24, 2021.

[2] The two issues dealt with at the VH were (a) The recent settlement of certain appeals; and (b) matters concerning a draft Procedural Order (“PO”) in the single remaining appeal.

3The Appellants, Ottawa Pool and Patio Ltd., Metro Towing, The Poole Creek Management Company Ltd. (“Settlement Parties”) had appealed the Official Plan Amendment 240 (“OPA”) and the amendment to Zoning By-law No. 2020-53 (“ZBA”) sought by the City of Ottawa (“City”) which relate to certain lands known in the City as the Goulbourn Wetlands and the Flewellyn Special Study Area (“Subject Lands”). The Settlement Parties have resolved their appeals with the City but had not yet had time to submit their settlement materials to the Tribunal in order for a settlement hearing to be conducted at the VH. Counsel for the City and the Settlement Parties proposed to submit the required materials to the Tribunal within 7 to 10 days and also to have the settlement proceeding occur by way of a motion in writing.

4The remaining appeal by R.W. Tomlinson Limited concerning the OPA and the ZBA relating to the Subject Lands has not been settled and counsel for that Appellant and the City wish to move forward with a hearing of that appeal. To that end, those counsel submitted a draft PO for the consideration of the Tribunal. The Tribunal pointed out the need for the draft PO to be revised in certain respects and counsel for the City and the Appellant agreed to resubmit it. Subsequent to the VH, a new draft PO was provided to the Tribunal and is now attached hereto at Attachment 1.

ORDER

5The Tribunal orders as follows:

1. The Settlement Parties and the City shall file with the Tribunal on or before July 2, 2021 all required materials concerning their motion in writing for a proposed settlement and the Tribunal shall determine their motion in writing only pursuant to the OLT Rules of Practice and Procedure.

2. The hearing of the appeal by R.W. Tomlinson Limited is scheduled to be held by video hearing for a period of three (3) consecutive days commencing on Tuesday, November 23, 2021 at 10 a.m.

https://global.gotomeeting.com/join/904096117

Access Code: 904-096-117

3. For the video hearing, all parties, and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.

4. Individuals are directed to connect to each of the events on the assigned dates at the correct time. It is the responsibility of the persons participating in the hearings to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

5. Observers and persons who experience technical difficulties accessing either of the video hearing events using the GoToMeeting application, or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: Toll-Free 1-888-455-1389 or +1 (647) 497-9391. The Access Code is as indicated above.

6. The hearing of the appeal by R.W. Tomlinson Limited described in 1. Above shall be governed by the Procedural Order set out in Attachment 1 hereto.

“William R. Middleton”

William R. Middleton

MEMBER

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal.

PL200263 – Attachment 1

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Metro Towing Appellant: Ottawa Pool & Patio Ltd. Appellant: R.W. Tomlinson Limited Appellant: The Poole Creek Management Company Ltd.; and others Subject: Proposed Official Plan Amendment No. 240 Municipality: City of Ottawa LPAT Case No.: PL200263 LPAT File No.: PL200263 LPAT Case Name: Metro Towing v. Ottawa (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Metro Towing Appellant: Ottawa Pool & Patio Ltd. Appellant: R.W. Tomlinson Limited Appellant: The Poole Creek Management Company Ltd. Subject: By-law No. 2020-53 Municipality: City of Ottawa LPAT Case No.: PL200263 LPAT File No.: PL200264

Procedural Order

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on Tuesday, November 23, 2021 commencing at 10 a.m. and shall continue on November 24 and November 25, 2021, as follows:

GoTo Meeting: https://global.gotomeeting.com/join/904096117

Audio-only telephone line: Toll-Free 1-888-455-1389 or +1 (647) 497-9391

Access Code: 904-096-117

3. The parties’ initial estimation for the length of the hearing is 3 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before September 29, 2021 (55 days prior to the hearing date) and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before November 1, 2021 (22 days before the hearing date) and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT Case Co-ordinator on or before at least 15 days prior to the start of the hearing).

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before October 15, 2021 (a minimum of 39 days before the hearing date), the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT Case Co-ordinator and in accordance with paragraph 22 below.

14. On or before October 15, 2021 (a minimum of 39 days before the hearing date), a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before November 9, 2021 (14 days before the hearing date), the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

16. Parties may provide to all other parties and the OLT Case Co-ordinator a written response to any written evidence within fourteen (14) days after the evidence is received and in accordance with paragraph 22 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT Case Co-ordinator no later than 10 days prior to the hearing date (on or before November 12, 2021).

18. Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT Case Co-ordinator, on or before November 16, 2021 (7 days before the hearing date).

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing date (on or before November 16, 2021) that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before November 9, 2021 (14 days before the hearing date) with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is not seized.

So orders the Tribunal.

Attachment to Sample Procedural Order

Meaning of terms used in the Procedural Order:

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information:

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by parties of opposite interest;
• re-examination by the party presenting the witness; or
• another order of examination mutually agreed among the parties or directed by the Tribunal.

ATTACHMENT 1

Parties and Participants

Parties

1. R.W. Tomlinson Limited D. Gregory Meeds Vice & Hunter LLP 85 Plymouth Street, Suite 101 Ottawa, ON K1S 3E2 Phone: 613-232-5773 Email: dgmeeds@viceandhunter.ca

2. City of Ottawa Timothy Marc Legal Services 110 Laurier Avenue West, 3rd Floor Ottawa, ON K1P 1J1 Phone: 613-580-2424 x 21444 Email: timothy.marc@ottawa.ca

Participants

1. 1332741 Ontario Inc. 1384341 Ontario Ltd. Jeffrey Cavanagh in Trust Thomas Cavanagh Construction Limited Ursula Melinz and Crystal McConkey Soloway Wright LLP 427 Laurier Avenue West, Suite 700 Ottawa, ON K1R 7Y2 Phone: 613-782-3214 Email: melinzu@solowaywright.com Email: cmcconkey@solowaywright.com

2. Ken McRae (Self-represented) Email: kmcrae0525@rogers.com

3. Greenspace Alliance of Canada’s Capital Paul Johanis P.O. Box 55085 240 Sparks Street Ottawa, ON K1P 1A1 Phone: 613-739-0727 Email: pjohanis@rogers.com

ATTACHMENT 2

Issues List

Note: The identification of an issue on this list does not mean that all Parties agree that the issue, or the manner in which it is expressed, is appropriate for or relevant to the proper determination of the appeals. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the Hearing.

Any Party may call or not call evidence on any issue; however, no Party is obligated to call evidence on any particular issue or every issue.

1. Are the Significant Wetlands OP designation and the EP3 zone for the subject lands consistent with the Provincial Policy Statement, 2020, including the definition of “significance” and policies 2.5.1 and 2.5.2.1?

2. Are the Significant Wetlands OP designation and the EP3 zone for the subject lands in conformity with the City of Ottawa Official Plan policies, including 3.2.1, 3.2.5 and 3.7.4?

3. Does the subject land constitute a Provincially Significant Wetland pursuant to provincially accepted evaluation criteria and methodology?

4. In re-designating and re-zoning the subject lands, has the City of Ottawa followed the direction in the OPA 76 decision for the Flewellyn Special Study Area?

5. Do the Official Plan designation and EP3 zone represent good land use planning?

ATTACHMENT 3

Order of Evidence

1. R.W. Tomlinson Limited
2. City of Ottawa
3. Reply by R.W. Tomlinson Limited